Dr Gerard Panting discusses court cases featuring the intentional and reckless transmission of the AIDS virus, and the GP's role in the prosecution process
To date in the UK, there have been eight reported cases where individuals have been convicted of transmitting HIV infection to sexual partners.1 As far as the Crown Prosecution Service (CPS) is concerned, there needs to be a clear statement that intentional or reckless sexual transmission of infections causing grievous bodily harm is not acceptable and will, where appropriate, result in prosecution. For this reason, the CPS has concluded a consultation exercise on the application of the criminal law to reckless and intentional transmission of HIV.2
The eight convictions have all been HIV-related, with prosecution for grievous bodily harm, under two sections of the 1861 Offences Against the Person Act,3 the section 18 offence being intentional transmission, and the lesser offence of reckless transmission coming under section 20. Conviction for either offence results in a prison sentence.
Two example cases
The first prosecution, R. v Dica,4 took place in 2003. In this case, the defendant was charged with two counts of reckless transmission. In 1995, Dica was told that he was HIV positive, and was prescribed antiretroviral medication.
The first charge against Dica related to a woman who came to the UK in 1994, and formed a relationship with Dica at some stage after 1997. He told her that he had previously had a vasectomy, and so there was no need for any form of contraceptive protection. She subsequently developed thrush and swollen glands, and was examined at a hospital where she was found to be HIV positive.4
Dica struck up a sexual relationship with his second victim in 2001. Initially they had protected sex but later had unprotected intercourse. She then exhibited symptoms of thrush, and was also diagnosed as being HIV positive.
Dica was arrested in 2002. The prosecution alleged that he had consensual intercourse with both women and, knowing that he was HIV positive, was reckless and inflicted grievous bodily harm on them. In essence, the facts were not in dispute; the only real issue was whether he told the women about his condition — they said he did not. Dica was found guilty and sentenced to 8 years imprisonment.1
In the Court of Appeal, Dica's conviction was quashed because the judge considered the consent defence implausible based on the evidence available to the court and, therefore, withdrew the issue of consent from the jury. At the retrial he was again found guilty and was sentenced to 4.5 years in prison.1
In another case, Feston Konzani was found guilty on three counts of inflicting grievous bodily harm,5 contrary to section 20 of the Offences Against the Person Act. He was informed that he was HIV positive in November 2000, and specifically warned of the risks of transmitting the infection to sexual partners. Nevertheless, he had unprotected sex with three women, having failed to tell them of his diagnosis. At trial, the evidence of the complainants was uncontested, each expressly denying that she had consented to running the risk of contracting the virus. Konzani was sentenced to 10 years in prison, and his appeal against conviction and sentence was dismissed.6
Bringing cases to trial
Successful prosecution depends upon having the evidence to secure a conviction, which, in turn, requires those infected by sexual partners to have the confidence to report what has happened and to give evidence in court.
Unsurprisingly, there is often some reticence on the part of victims who do not wish to advertise their HIV status, or perhaps their sexual orientation, in the witness box. Victims could effectively be 'outed' as a result of testifying, or be subject to insensitive treatment by the police and others involved in the investigation and prosecution.
Prosecution can be brought for allegations of intentional transmission (under section 18) or reckless transmission (under section 20). In practice, section 20 appears to be the favoured route as it is easier to secure a prosecution when you do not have to prove intent.
So what is recklessness? The basic elements of recklessness are in place when someone knows that he or she is infected with a sexually transmissible infection,2 and is aware that there is a risk of transmitting this to others, but nevertheless has sex with another person. The latter did not consent to risk of transmission and then, as a result of the sexual activity, contracts the disease. There are a range of defences,2 for example:
- the use of a condom to reduce the risk of transmission
- whether the perpetrator-cum-defendant relied upon medical or professional guidance
- the extent of the defendant's awareness of the infection at the time when sex took place.
A further defence is the issue of consent. It is not enough for the other person simply to consent to sexual intercourse or other sexual activity, but expressing consent to unprotected sex can be used as a defence. For that consent to be informed, the complainant must be told of the defendant's infected status beforehand and knowingly engage in sex while aware of the risk of becoming infected.2
In summary, to prosecute someone successfully under section 20 of the Offences Against the Person Act, five different points must be proved:2
- that the defendant was infected with a sexually transmissible infection
- that he or she knew it
- that there was recklessness — an awareness of the risk of transmitting an infection to the victim, which, nevertheless, was disregarded
- that the victim suffers grievous bodily harm as a consequence of becoming infected
- that there was no informed consent.
Issues for patients and healthcare professionals
The threat of prosecution raises a number of issues for healthcare professionals and their patients, including the reluctance of patients to be tested and treated for HIV; failure to disclose sexual activity; a lack of trust, with the risk of disclosure to the police; issues around HIV-negative people and their responsibility for their own sexual health (i.e. healthy people should look after themselves and not rely on the law to protect them); concerns about the criminal law being used to regulate public health; fears about HIV being driven underground (you can only be prosecuted if you know you are HIV positive, so there is a disincentive to find out your HIV status) leading to increased risk of onward transmission; and the possibility of increased stigma and prejudice.
However, despite these concerns and the inherent difficulties in bringing these cases to trial, criminal prosecution appears to be here to stay. Whether or not this serves as a deterrent, responsibility for sexual behaviour must rest with individuals.
To enable them to behave responsibly, patients need to be informed about the risks of various forms of sexual behaviour.
In the event of prosecution, healthcare professionals may be called upon to give evidence about what patients were told and when. The medical records will be pored over in great detail. If it is noted that there was a lack of communication, it will be highlighted, with the inevitable suggestion to the doctor that perhaps this patient was not as well informed as he or she should have been. The consequences of this lack of communication will vary depending on the full facts of the case.
- National AIDS Trust. Criminal Prosecution of HIV Transmission – NAT Policy Update. London: NAT, 2006.
- The Crown Prosecution Service. Draft policy for prosecuting cases involving sexual transmission of infections, which cause grievous bodily harm. www.cps.gov.uk/about/consultations/sti_index.html
- 1861 Offences Against the Person Act. London: Her Majesty's Stationery Office, 1861.